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As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

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Delaware Legal Ethics

The
language and much of the reasoning behind Delaware’s Rule 1.6
is the same as the Model Rule’s Rule 1.6. The only textual
difference occurs in the notes. The end of Comment [8] is changed so
as “to address concerns about a lawyer’s discretion to
disclose information related to a client’s continuing crime or fraud.” Memorandum: “New Delaware Lawyers’
Rules of Professional Conduct, Supreme Court of Del.”, April
29, 2003. Comment [12] adds a specific example of where Delaware law
requires disclosure. Del Code. Ann. tit. 29, § 9007A(c) (2003)
(attorney acting as guardian of children to protect the child’s
best interests). Also, the wording to Comment [13] differs somewhat
from the Model Rule comment, but appears to have the same intent.

1.6:102 Model Code Comparison

Rule 1.6
merged the two-pronged duty under Model Code DR 4-101 into one duty
regarding information “relating to representation.” Rule
1.6 also eliminates the requirement that the information be specified
by the client as confidential.

Rule 1.6(a) allows for inferred
consent to disclose, while DR 4-101(B) required actual consent to
reveal “confidences.” Rule 1.6(b) refers to degrees of
harm when a client committs a crime, while under DR 4-101(B) and (C),
disclosure was allowed regardless of the seriousness of the proposed
crime. Rule 1.6(b) also enlarges the acceptable disclosures for
cases between the lawyer and the client, beyond just fee disputes
noted in DR 4-101(C)(4).

Comment
[2] “A fundamental principle in the client-lawyer relationship
is that, in the absence of the client's informed consent, the lawyer
must not reveal information relating to the representation. . . .
This contributes to the trust that is the hallmark of the
client-lawyer relationship. The client is thereby encouraged to seek
legal assistance and to communicate fully and frankly with the lawyer
even as to embarrassing or legally damaging subject matter. The
lawyer needs this information to represent the client effectively
and, if necessary, to advise the client to refrain from wrongful
conduct. Almost without exception, clients come to lawyers in order
to determine their rights and what is, in the complex of laws and
regulations, deemed to be legal and correct. Based upon experience,
lawyers know that almost all clients follow the advice given, and the
law is upheld.” DLRPC 1.6 cmt. 2.

1.6:210 Definition of Protected
Information

Comment
[3] “ . . . The confidentiality rule…applies not only to
matters communicated in confidence by the client but also to all
information relating to the representation, whatever its source. . .
.” DLRPC 1.6 cmt. 3.

Under the
Delaware Rules of Evidence, a communication is “confidential if
not intended to be disclosed to third persons other than those to
whom disclosure is made in furtherance of the rendition of
professional legal services to the client of those reasonably
necessary for the transmission of the communications.” Del.
R. Evid. 502(a)(2) (2004).

A client’s name can be
considered confidential information in certain instances, such as
domestic relations cases because “matters involving divorce and
domestic relations law are private concerns.” Brett v.
Berkowitz, 706 A.2d 509, 515 (Del. 1998).

Information sent by a lawyer
regarding a prior case, to a client in preparation to defend against
current litigation, is privileged. Ramada Inns, Inc. v. Dow Jones
& Co., 523 A.2d 968, 72-3 (Del. Super Ct. 1986). In Ramada,
the court found that a deposition from a prior case that was sent
from a lawyer to the management and/or editors of a paper to
facilitate a litigation defense in a current case, was confidential. Id. at 972-3. The deposition addressed the practices of one
of the reporters at the center of the current case. Id.

It has been held that the
communication from a former client to a lawyer, after the lawyer has
told the former client that the lawyer cannot represent the client,
is not confidential. Thus the lawyer in these situations has no duty
to hold the information confidential. Delaware v. Outten,
1992 Del. Super. LEXIS 484, at 13-4 (Del. Super. Ct. Dec. 1, 1992).

“[W]here a lawyer [is]
expressly authorized by his client to communicate to opposing counsel
matters to be considered in negotiations for settlement of a
controversy, such matters [are] not confidential communications
protected by attorney/client privilege.” Moyer v. Moyer,
602 A.2d 68, 72 (Del. 1992).

1.6:220 Lawyer’s Duty to
Safeguard Confidential Client Information

Comment
[16] “A lawyer must act competently to safeguard information
relating to the representation of a client against inadvertent or
unauthorized disclosure by the lawyer or other persons who are
participating in the representation of the client or who are subject
to the lawyer's supervision. See Rules 1.1, 5.1 and 5.3.” DLRPC
1.6 cmt. 16.

Comment
[17] “When transmitting a communication that includes
information relating to the representation of a client, the lawyer
must take reasonable precautions to prevent the information from
coming into the hands of unintended recipients. This duty, however,
does not require that the lawyer use special security measures if the
method of communication affords a reasonable expectation of privacy.
Special circumstances, however, may warrant special precautions.
Factors to be considered in determining the reasonableness of the
lawyer's expectation of confidentiality include the sensitivity of
the information and the extent to which the privacy of the
communication is protected by law or by a confidentiality agreement.
A client may require the lawyer to implement special security
measures not required by this Rule or may give informed consent to
the use of a means of communication that would otherwise be
prohibited by this Rule.” Id. cmt. 17.

The lawyer
must safeguard communications with the lawyer’s client that the
client intends to be confidential. Moyer v. Moyer, 602 A.2d
68, 72 (Del. 1992). This does not include communications the client
agrees can be shared with opposing counsel in settlement
negotiations. Id. However, the duty does pertain to reasons
the client might give for not signing a negotiated agreement and any
specific advice the lawyer might have given the client for not doing
so. Id. at 73

In Nemours Found. v.
Gilbane Bldg. Co., the Court, applying Delaware’s Rules of
Professional Responsibility, found that the attorney of one of the
former co-clients must protect confidential information and thus was
disqualified from representing both former co-clients when their
interests became adverse. 632 F. Supp. 418, 422 (Del D. 1986). The
Court came to this conclusion because the attorney had been “privy
to confidences of both” clients and that the clients’
“‘commonality of interest’ necessitated a sharing
of work product, privileged information, and other confidential
information.” Id.

1.6:250 Information Imported in
Lawyer Counseling Programs

No relevant information available.

1.6:260 Information Learned Prior
to Becoming a Lawyer

In an ethics opinion by a
committee of the Delaware State Bar Association, it was held that
information a law student obtained while working for a firm prevented
that student from working on anything related to the litigation when
acting as a lawyer with another firm representing the other party to
the litigation. The opinion stated that the new law firm may
insolate the new lawyer and prevent its other lawyers from being
disqualified through imputation. Delaware State Bar Association,
Committee on Profession Ethics, Opinion 1986-1.

Comment
[14] “Paragraph (b) permits disclosure only to the extent the
lawyer reasonably believes the disclosure is necessary to accomplish
one of the purposes specified. Where practicable, the lawyer should
first seek to persuade the client to take suitable action to obviate
the need for disclosure. In any case, a disclosure adverse to the
client's interest should be no greater than the lawyer reasonably
believes necessary to accomplish the purpose. If the disclosure will
be made in connection with a judicial proceeding, the disclosure
should be made in a manner that limits access to the information to
the tribunal or other persons having a need to know it and
appropriate protective orders or other arrangements should be sought
by the lawyer to the fullest extent practicable.” DLRPC 1.6
cmt. 14.

The Delaware Superior Court found it
was not a violation of a client’s confidence when a lawyer told
the client’s family about misgivings the client was having in
agreeing to a plea agreement. The Court held that consent was given
when the client gave the OK to see his mother “and other key
family members . . . to facilitate a full discussion of his [plea]
agreement.” Delaware v. Melendez, No. 04104020056, 2003
Del. Super. LEXIS 409, *37-8 (Del. Super. Ct. Dec. 19, 2003), aff’d
on other grounds, Melendez
v. State, 2004 Del. LEXIS 377 (Del. Aug.
25, 2004).

Under Delaware law, the position of
attorney guardian ad litem can be created. Those holding this
position represent the child’s court appointed guardian, or
guardian ad litem, and as such, do not represent the child.
Thus, an attorney guardian ad litem can act in a manner deemed
best for the child, regardless of the wishes of the child. A
committee of the Delaware State Bar Association raised concerns as to
whether young children could understand this difference when giving
confidential information to their lawyers. Delaware State Bar
Association, Committee on Professional Ethics, Opinion 2001-1.

1.6:320 Disclosure When Required
by Law or Court Order

Comment
[12] “Other law may require that a lawyer disclose information
about a client. Whether such a law supersedes Rule 1.6 is a question
of law beyond the scope of these Rules. When disclosure of
information relating to the representation appears to be required by
other law, the lawyer must discuss the matter with the client to the
extent required by Rule 1.4. If, however, the other law supersedes
this Rule and requires disclosure, paragraph (b)(6) permits the
lawyer to make such disclosures as are necessary to comply with the
law. See, e.g., 29 DEL. CODE ANN. § 9007A(c) (which provides that
an attorney acting as guardian ad litem for a child in child
welfare proceedings shall have the “duty of confidentiality to
the child unless the disclosure is necessary to protect the child’s
best interests”).” DLRPC 1.6 cmt. 12.

Comment
[13] “Paragraph (b)(6) also permits compliance with a court
order requiring a lawyer to disclose information relating to a
client’s representation. If a lawyer is called as a witness to
give testimony concerning a client or is otherwise ordered to reveal
information relating to the client’s representation, however,
the lawyer must, absent informed consent of the client to do
otherwise, assert on behalf of the client all nonfrivolous claims
that the information sought is protected against disclosure by the
attorney-client privilege or other applicable law. In the event of
an adverse ruling, the lawyer must consult with the client about the
possibility of appeal to the extent required by Rule 1.4. Unless
review is sought, however, paragraph (b)(6) permits the lawyer to
comply with the court's order.” Id. cmt. 13

It is not a violation of Rule 1.6
for a lawyer to have answered questions under court order, under
cross-examination, after objecting and being overruled, when that
ruling to deny the objection is later overturned by an appellate
court. Moyer v. Moyer, 602 A.2d 68, 73 (Del. 1992).

1.6:330 Disclosure in Lawyer’s
Self-Defense

The
Delaware Office of Disciplinary Council found that disclosure of
confidential information was not done in “self-defense”
when a lawyer included a detailed letter from the client to the
lawyer with a motion to a judge for the lawyer to withdraw as
counsel. Inclusion was “beyond what was necessary to support
the motion to withdraw,” and even if it was necessary, it could
have been shown to the court privatly and not in an open motion.
Delaware Office of Disciplinary Council, Private Admonition, Board
Case No. 6, 1995, July 14, 1995.

1.6:340 Disclosure in Fee Dispute

Comment
[11] “A lawyer entitled to a fee is permitted by paragraph
(b)(5) to prove the services rendered in an action to collect it.
This aspect of the rule expresses the principle that the beneficiary
of a fiduciary relationship may not exploit it to the detriment of
the fiduciary.” DLRPC 1.6 cmt. 11.

The exception of allowing disclosure
in a fee dispute does not pertain to situations where failure to
recover a fee stems from court decisions under Del. Code. Ann. 19
§2127(a) (2004). Exume v. Mountaire of Delmarva, No.
90A-FE-1, 1991 Del. Super. LEXIS 176, *10-11 (Del. Super. Ct. May 1,
1991). This statute deals with situations where a client refuses to
settle and the final award is less than the prior settlement offer.
In these situations, the lawyer is not permitted to share
confidential client information to show that the lawyer advised the
client to accept the offer, but that the client refused. Id.
at *10-11. The lawyer should raise a “reasonableness”
argument for fees and require that the determination of the fee be
based on the factors listed in General Motors Corp. v. Cox,
304 A.2d 55 (Del. 1973). Id.

1.6:350 Disclosure to Prevent a
Crime

Comment
[7] “Paragraph (b)(2) is a limited exception to the rule of
confidentiality that permits the lawyer to reveal information to the
extent necessary to enable affected persons or appropriate
authorities to prevent the client from committing a crime or a fraud,
as defined in Rule 1.0(d), that is reasonably certain to result in
substantial injury to the financial or property interests of another
and in furtherance of which the client has used or is using the
lawyer’s services.” DLRPC 1.6 cmt. 7.

1.6:360 Disclosure to Prevent
Death or Serious Bodily Injury

Comment
[6] “ . . . Paragraph (b)(1) recognizes the overriding value of
life and physical integrity and permits disclosure reasonably
necessary to prevent reasonably certain death or substantial bodily
harm. Such harm is reasonably certain to occur if it will be suffered
imminently or if there is a present and substantial threat that a
person will suffer such harm at a later date if the lawyer fails to
take action necessary to eliminate the threat.” Id.
cmt. 6.

1.6:370 Disclosure to Prevent
Financial Loss

see 1.6:350 Disclosure to Prevent a
Crime

1.6:380 Physical Evidence of
Client Crime [see 3.4:210]

Rule 3.4 provides that a lawyer
shall not “unlawfully obstruct another party’s access to
evidence or unlawfully alter, destroy or conceal a document or other
material having potential evidentiary value. A lawyer shall not
counsel or assist another person to do any such act.” DLRPC
3.4(a). The Delaware Superior Court in People v. Burrell,
noted in dicta that evidence of a crime, presented by the defendant
client to his attorney, is “not subject to privilege and must
be delivered to the prosecution . . .” 1999 Del. Super. LEXIS
370, *20-21 (Del. Super. Ct. Aug. 16, 1999).

1.6:390 Confidential and Conflict
of Interest

Rule
1.9. Duties to former clients. b) A lawyer shall not knowingly
represent a person in the same or a substantially related matter in
which a firm with which the lawyer formerly was associated had
previously represented a client: (2) about whom the lawyer had
acquired information protected by Rules 1.6 and 1.9(c) that is
material to the matter. DLRPC 1.9. To do so would “cast a
substantial threat of taint over the integrity of [the] litigation.”
Bowden v. Developers Diversified Realty, C.A. No. 97C-10-020WLW, 1999
Del. Super. LEXIS 423, *8 (Del. Super. Ct. July 1, 1999).

Rule
1.10. Imputation of conflicts of interest: General rule. When a
lawyer has terminated an association with a firm, the firm is not
prohibited from thereafter representing a person with interests
materially adverse to those of a client represented by the formerly
associated lawyer and not currently represented by the firm, unless:
(2) any lawyer remaining in the firm has information protected by
Rules 1.6 and 1.9(c) that is material to the matter. DLRPC 1.10.

1.6:395 Relationship with Other
Rules

Comment
[1] “This Rule governs the disclosure by a lawyer of
information relating to the representation of a client during the
lawyer's representation of the client. See Rule 1.18 for the lawyer's
duties with respect to information provided to the lawyer by a
prospective client, Rule 1.9(c)(2) for the lawyer's duty not to
reveal information relating to the lawyer's prior representation of a
former client, and Rules 1.8(b) and 1.9(c)(1) for the lawyer's duties
with respect to the use of such information to the disadvantage of
clients and former clients.” DLRPC 1.6 cmt. 1.

Comment
[15] “ . . . A lawyer's decision not to disclose as permitted
by paragraph (b) does not violate this Rule. Disclosure may be
required, however, by other Rules. Some Rules require disclosure only
if such disclosure would be permitted by paragraph (b). See Rules
1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires
disclosure in some circumstances regardless of whether such
disclosure is permitted by this Rule. See Rule 3.3(c).” Id.
cmt. 15.

Rule
1.8. Conflict of Interest: Current Clients: Specific Rules. (f) A
lawyer shall not accept compensation for representing a client from
one other than the client unless: (3) information relating to
representation of a client is protected as required by Rule 1.6.

Rule 1.9. Duties to former clients. b) A lawyer shall
not knowingly represent a person in the same or a substantially
related matter in which a firm with which the lawyer formerly was
associated had previously represented a client: (2) about whom the
lawyer had acquired information protected by Rules 1.6 and 1.9(c)
that is material to the matter. To do so would “cast a
substantial threat of taint over the integrity of [the] litigation.” Bowden v. Developers Diversified Realty, C.A. No.
97C-10-020WLW, 1999 Del. Super. LEXIS 423, *8 (Del. Super. Ct. July
1, 1999).

Rule
1.10. Imputation of conflicts of interest: General rule. When a
lawyer has terminated an association with a firm, the firm is not
prohibited from thereafter representing a person with interests
materially adverse to those of a client represented by the formerly
associated lawyer and not currently represented by the firm, unless:
(2) any lawyer remaining in the firm has information protected by
Rules 1.6 and 1.9(c) that is material to the matter. DLRPC 1.10.

Rule 1.14. Client with diminished capacity. (c)
Information relating to the representation of a client with
diminished capacity is protected by Rule 1.6. When taking protective
action pursuant to paragraph (b), the lawyer is impliedly authorized
under Rule 1.6(a) to reveal information about the client, but only to
the extent reasonably necessary to protect the client's interests.

Rule 2.3. Evaluation for use by third persons. (c)
Except as disclosure is authorized in connection with a report of an
evaluation, information relating to an evaluation is otherwise
protected by Rule 1.6. DLRPC 2.3.

Rule 3.3. Candor toward the tribunal. (c) The duties
stated in paragraph (a) and (b) continue to the conclusion of the
proceeding, and apply even if compliance requires disclosure of
information otherwise protected by Rule 1.6. DLRPC 3.3.

Rule 4.1. Truthfulness in statements to others. In the
course of representing a client a lawyer shall not knowingly: (b)
fail to disclose a material fact when disclosure is necessary to
avoid assisting a criminal or fraudulent act by a client, unless
disclosure is prohibited by Rule 1.6. DLRPC 4.1.

Rule 8.1. Bar admission and disciplinary matters. A
lawyer shall not (b) fail to disclose a fact necessary to correct a
misapprehension known by the person to have arisen in the matter, or
knowingly fail to respond to a lawful demand for information from an
admission or disciplinary authority, except that this rule does not
require disclosure of information otherwise protected by Rule 1.6.
DLRPC 8.1.

“In Delaware, although the
attorney-client privilege is highly regarded, it is not absolute, and
must yield to the interests of justice.” Hoechst Celanese
Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 623 A.2d
1118, 1123 (Del. Super. Ct. 1992). “The purpose of the
attorney-client privilege is to allow potential litigants to obtain
legal counsel uninhibited by any fear such confidential
communications might be disclosed. The privilege serves the
important public policy of facilitating free discussions between a
client and attorney and should not be lightly disregarded.” Finley Assocs. v. Sea & Pines Consol. Corp., 714 F. Supp.
110, 117 (D. Del. 1989).

Under Delaware Rules of Evidence,
“[a] client has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential communications
made for the purpose of facilitating the rendition of professional
legal services to the client (1) between the client or the client’s
representative and the client’s lawyer or the lawyer’s
representative, (2) between the lawyer and the lawyer’s
representative, (3) by the client or the client’s
representative or the client’s lawyer or a representative of
the lawyer to a lawyer or representative of a lawyer representing
another in a matter of common interest, (4) between representatives
of the client or between the client and a representative of the
client, or (5) among lawyers and their representatives representing
the same client.” Del.
R. Evid. 502(b) (2004). Said another way, “[t]he
standard for invoking the attorney-client privilege is as follows:
(1) the asserted holder of the privilege is or sought to become a
client; (2) the person to whom the communication was made (a) is a
member of the bar of a court, or his subordinate and (b) in
connection with this communication is acting as a lawyer; (3) the
communication relates to a fact of which the attorney was informed
(a) by his client (b) without the presence of strangers (c) for the
purpose of securing primarily either (i) an opinion of law or (ii)
legal services or (iii) assistance in some legal proceeding, and not
(d) for the purpose of committing a crime or tort; and (4) the
privilege has been (a) claimed and (b) not waived by the client.” Davenport Group v. Strategic Investment, C.A. No. 14426-NC,
1995 Del. Ch. LEXIS 109, *1-2 (Del. Ch. Aug. 24, 1995) (claim
dismissed by Davenport
Group MG, L.P. v. Strategic Inv. Partners,
685 A.2d 715, 1996 Del. Ch. LEXIS 6 (Del. Ch. 1996), aff’d, Davenport
Group MG, L.P. v. Citibank, N.A., 687
A.2d 194, 1996 Del. LEXIS 346 (Del. 1996)) (following United
States v. United Shoe Mach. Corp., 89 F. Supp. 357 (D. Mass.
1950).

“The
word ‘communications’ has been defined to include any
means by which information or though is conveyed from one person to
another,” including the “sending or handing [of] written
material to another person . . .” Ramada Inns, Inc. v. Dow
Jones & Co., 523 A.2d 968, 971-2 (Del. Super Ct. 1986). This
includes “all communications, whether written or oral, made for
the purpose of facilitating the rendition of professional legal
services.” Zirn v. VLI Corp., 621 A.2d 773, 781 (Del.
1993). It also can include preliminary drafts of board meeting
documents, the final version of which were meant for public
disclosure. Lee v. Engle, C.A. No. 13323, 1995 Del. Ch. LEXIS
149, *18 (Del. Ch. Dec. 15, 1995), clarified by Lee
v. Engle, 1998 Del. Ch. LEXIS 122 (Del.
Ch. June 19, 1998). It also does not need to be confidential “in
the sense of being unknown or unknowable by anyone else.” Raley v. Stango, C.A. No. 1047, 1985 Del. Ch. LEXIS 514, *3
(Del. Ch. Sept. 13, 1985).

“The
privilege only protects the communications themselves and does not
prevent disclosure of the underlying facts which are the substance of
the communications,” in other words, a client cannot refuse to
answer a question about a fact that just happens to be included in a
communication with the client’s lawyer and a “party may
be compelled to disclose relevant information even when the
information was received through a communication which is itself
confidential.” Hoechst Celanese Corp. v. Nat’l Union
Fire Ins. Co. of Pittsburgh, 623 A.2d 1118, 1122 (Del. Super. Ct.
1992).

“In
order for a communication to be privileged, it is essential that the
client expressly make the communication confidential or make it under
circumstances such that he could reasonably assume it would be kept
confidential.” Hoechst Celanese Corp. v. Nat’l Union
Fire Ins. Co. of Pittsburgh, 623 A.2d 1118, 1122 (Del. Super. Ct.
1992). Preparing that same “communication with the intention
or expectation that it will be revealed to another person, who is not
necessary for the rendition of the legal services or communication”
will render it lacking in confidentiality and thus not covered by the
privilege. Id. at 1122. In Hoechst, an insurance
company was defending and indemnifying a company against certain
claims, but over a period of time that relationship soured to a point
where the insurer refused to pay for additional claims. The court
found that communications between the company and its lawyer were not
privileged for the period where the company was still expecting the
insurers to defend and indemnify them, because the company “could
not reasonably expect the insurers to provide a defense and indemnify
[the company] for its claims without having access to information
about the claims through the communications . . .” Id.
at 1122-3.

An example
of a time when communication would not be privileged: “A
meeting is held to consider [‘a competitor announcing a new
product line or the companies stock being accumulated’].
Representatives of relevant or affected aspects of the corporation
are present (e.g. finance, marketing, legal, and perhaps others) to
contribute to a correct definition of the problem, designing of a
responsive strategy and the implementation of it. A lawyer will be
expected to contribute appropriate observations at such a meeting . .
. At the conclusion of the meeting a plan is adopted and then
implemented. Litigation against the corporation follows in which the
reasons the company pursued this plan are relevant. . . . The
discussions that occur at our hypothetical corporate meeting are
discussions among a body of persons for the purpose of formulating an
appropriate business strategy. As such they are, in a sense,
ultimately disclosures for the benefit of the responsible business
decision-maker. Legal considerations may, of course, play a part in
the formulation of a business policy or strategy, but unless the
claimant of a privilege can specifically identify a disclosure made
specifically to a lawyer for the purpose of assisting in the
rendition of legal services (and not made at the meeting for the
purpose of business strategy), the fact that a lawyer gave incidental
(or important) advice in the course of such a meeting does not
protect disclosure of statements made at the meeting.” SIPCA
Holdings S.A. v. Optical Coating Laboratory, Inc., C.A. No.
15129, 1996 Del. Ch. LEXIS 118, *5-7 (Del. Ch. Sept. 23, 1996).

The burden
is on the person claiming attorney-client privilege to establish that
the communication meets the requirement to be covered by the
privilege. Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992).
“[T]hat burden is particularly difficult where none of the
indicia of a legal communication appear on the document’s
face.” In re Circon Corp., Consol. C.A. No. 15165, 1998
Del. Ch. LEXIS 121, *11 (Del. Ch. July 6, 1998). In Circon,
the Court found no privilege, Id. at *19-20, for documents
that were not addressed to the attorney and did “not ask legal
questions or respond to legal advice.” Id. at *14. In Balin v. Amerimar Reality Co., despite the fact that the
moving party “had instructed his secretary not to show the
memoranda to anyone, the documents in question were labeled ‘strictly
confidential’ and kept on a separate computer disk rather than
on the company’s computer network, and the disk was normally
stored in a locked file,” no privileged attached because the
disk contained several memoranda that were not claimed as privilege,
the memorandum was not addressed to the attorney although other
privileged ones were, it was not sent to the attorney until the
following week, and the “secretary could not recall any special
instructions on how to handle the memoranda.” C.A. No. 12896,
1995 Del. Ch. LEXIS 41, *24-27 (Del Ch. Apr. 10, 1995). The Court
stated that all the moving party needed to have done was “address
the memoranda to his attorney and separate the ‘privileged’
memoranda from the nonprivileged ones.” Id. at 27. By
so addressing the memorandum, it would have created a prima facie
case “that the communication was confidential and made to
facilitate the rendition of professional legal services,” thus
deserving attorney-client privilege protection.” Id. at
29.

The court
can look to other extrinsic evidence and infer from the circumstances
that communications are between a lawyer and client when, on their
face, the documents do not suggest such. In re Circon Corp.,
Consol. C.A. No. 15165, 1998 Del. Ch. LEXIS 121, *15 (Del. Ch. July
6, 1998).

1.6:420 Privileged Persons

“[Attorney-client] privilege
belongs to the client, but the client may, expressly or implicitly,
waive the protections afforded by the privilege.” Tackett v.
State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 259 (Del.
1995). Under Delaware rules of evidence, privilege “may be
claimed by the client, the client’s guardian or conservator,
the personal representative of a deceased client or the successor,
trustee or similar representative of a corporation, association or
other organization, whether or not in existence. A person who was
the lawyer or the lawyer’s representative at the time of
communication is presumed to have the authority to claim the
privilege but only on behalf of the client.” Del.
R. Evid. 502(c) (2004).

Under
Delaware Rules of Evidence, the privilege can extend to the
principle’s agents. Del.
R. Evid. 502(b) (2004). Delaware has followed the
U.S. Supreme Court in Upjohn Co. v. United States, 449 U.S.
383 (1981) and rejected the “control group test” in
corporate attorney-client privilege, in favor of allowing privilege
to be maintained when those seeing the communication are deemed
essential in knowing the contents of the communications. Int’l
Bus. Machines Corp. v. Comdisco, Inc., C.A. No. 91-C-07-119, 1992
Del. Super. LEXIS 67, at *4-5 (Del. Super. Ct. 1992) following James
Julian, Inc. v. Ratheon Co., 93 F.R.D. 138, 7 (D. Del. 1982).

In American Legacy Found. v. Lorillard Tobacco Co., the court
found that due to the close relationship between a public relation
firm and the company’s lawyer, “confidential
communication with a public relations firm may be protected by
attorney-client privilege.” C.A. No. 19406, 2004 Del. Ch.
LEXIS 157, at *20-1 (Del. Ch. Nov. 3, 2004). Ultimately, however,
the court found that the company had not met its burden since it
failed to show that the confidential communication related to legal
advice. Id. at 19.

“[W]hen an attorney has been
retained to represent both insured and insurer in a third-party
action, communications by either party will not be privileged as to
the other, even if their interests later diverge.” Hoechst
Celanese Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh,
623 A.2d 1118, 1124-5 (Del. Super. Ct. 1992).

See 1.6:470 Privilege for
Organizational Clients;1.6:475 Privilege for Governmental
Clients; and 1.6:480 Privilege of Co-Clients for other examples and
explanations of “privileged person.”

1.6:430 Communications “Made
in Confidence”

In a libel case, material passed
from a lawyer to the management and/or editors of the lawyer’s
client was considered to be done in confidence and “not [to] be
divulged outside the management-editorial circle.” Ramada
Inns, Inc. v. Dow Jones & Co., 523 A.2d 968, 972 (Del. Super
Ct. 1986).

In an ethics opinion of a committee
of the Delaware State Bar Association, the committee found that a
lawyer may make communications in confidence when using email or a
cell phone absent extraordinary circumstances. The test they
proposed was whether the lawyer reasonably anticipated the
possibility of interception and used the example of sharing email
accounts with another. To determine if an extraordinary circumstance
exists, they suggest the lawyer determine if there is a significant
risk of inadvertent disclosure, and if not, then the communication
can generally be made in confidence using email or a cell phone.
Delaware State Bar Association, Committee on Professional Ethics,
Opinion 2001-2.

In Int’l Bus. Machines
Corp. v. Comdisco, Inc., the Court found that an e-mail
containing confidential information remained confidential “although
several persons were copied on the communications, [because] these
people had a need to know the information in the memo to perform
their duties.” C.A. No. 91-C-07-199, 1992 Del. Super. LEXIS
67, at *4-5 (Del. Super. Ct. Mar. 11, 1992).

1.6:440 Communications from Lawyer
to Client

Under Delaware Rules of Evidence,
confidentiality applies “equally to a communication made by the
client to the attorney and to a communication made by the attorney to
the client.” Ramada Inns, Inc. v. Dow Jones & Co.,
523 A.2d 968, 972 (Del. Super Ct. 1986).

1.6:450 Client Identity,
Whereabouts, and Fee Arrangements

“As a general rule, the
client’s identity is incidental to the attorney-client
relationship. Therefore, it is not usually protected from discovery
under the attorney-client privilege.” Brett v. Berkowitz,
706 A.2d 509, 514 (Del. 1998). “A client’s identity is
privileged information in exceptional cases: (1) where revealing the
identity would provide the ‘last link’ in the chain of
evidence leading to the conclusion that the client had committed a
crime; and (2) where the revelation of the client’s identity
would simultaneously reveal ‘confidential communications’
between the lawyer and client.” Id. at 514. In the
“last link” exception, “[t]he lawyer refuses to
reveal the identity of the client because doing so may cause criminal
charges to be brought against the client.” Id. at 514.
The second exception exists for cases such as domestic relation
cases. In those cases “discovery would disclose simultaneously
that those female clients were either considering divorce or in need
of advice in a domestic relations matter. Because of the privacy
interests of clients seeking advice in those areas, the disclosure of
their identities would be a violation of the attorney-client
privilege.” Id. at 515. In Brett, a woman
alleging her attorney sexually harassed her was denied a request to
compel discovery of the names of other female clients of the attorney
to see if she could find others to have similarly suffered. Id.
at 513.

1.6:460 Legal Assistance as Object
of Communication

When a
former client communicates with a former lawyer, when the lawyer has
clearly stated that the lawyer cannot represent the client, the
communication is not for legal assistance and thus not privileged. Delaware v. Outten, 1992 Del. Super. LEXIS 484, at 13-4 (Del.
Super. Ct. Dec. 1, 1992).

1.6:470 Privilege for
Organizational Clients

“The attorney-client privilege
finds full application where a corporation is the client seeking
professional advice and assistance.” Zirn v. VLI Corp.,
621 A.2d 773, 781 (Del. 1993). “The corporation may only
assert the privilege through its agents, i.e. its officers and
directors, who must exercise the privilege in a manner consistent
with their fiduciary duty to act in the best interests of the
corporation and not for themselves as individuals. Thus, the
privilege . . . is not absolute and, if the legal advice relates to a
matter which becomes the subject of a suit by a shareholder against
the corporation, the invocation of the privilege may be restricted or
denied entirely.” (citations omitted) Id. at 781. (for
exceptions and further explanation see 1.6:650 Exception for
Organizational Fiduciaries).

“[A]s a general matter, a
corporation cannot assert the privilege to deny a director access to
legal advice furnished to the board during the director’s
tenure,” Moore Bus. Forms, Inc., v. Cordant Holdings Corp.,
C.A. Nos. 13911 & 14595, 1996 Del. Ch. LEXIS 56, *12 (Del. Ch.
June 4, 1996), unless it is done “by an ex ante agreement among
the contracting parties.” Id. at *16. To do otherwise
would be analogous to allowing “privilege to be asserted
against the client.” Id. at *18. In Moore Business
Forms, Inc. the Court found that even when the director had
recused himself when the material being claimed as privileged was
discussed, the director still had access to privileged information,
because he recused himself out of courtesy so the board could have a
frank discussion, with the understanding that no board action would
be taken when he was gone. Id. at *19-20.

On the other hand, in SBC
Interactive, Inc. v. Corp. Media Partners, the Court held that
the partnership could invoke attorney-client privilege against a
partner when the partner had initiated the partner’s right to
withdraw from the partnership. C.A. No. 15987, 1997 Del. Ch. LEXIS
170, *12 (Del. Ch. Dec. 8, 1997) (summary judgment granted, SBC
Interactive v. Corporate Media Partners,
1997 Del. Ch. LEXIS 180 (Del. Ch. Dec. 24, 1997), aff’d,SBC
Interactive v. Corporate Media Partners,
714 A.2d 758, 1998 Del. LEXIS 302 (Del. 1998)). The court pointed to
the lack of evidence that the partner considered the partnership’s
attorney as the partner’s attorney, the fact that the interests
of the partner and partnership were undeniably different at the time
the privileged information was drafted, and the partner’s
actions were consistent with these facts. Id. at *11. The
court found that there was no expectation or reliance on behalf of
the partner or the partnership’s attorney. Id. at *13.

Attorney client privilege exists
when legal advice is communicated by a town solicitor to individual
council members regarding council business. Interfaith Housing
Del. Inc., v. Georgetown, 841 F. Supp. 1393, 1398 (D. Del. 1994).
“Because of their joint obligations and commonality of
interest, the members of the Town Council share in its
attorney-client privilege when a third party sues both the town and
each councilmember.” Id. at 1398. Council can waive
this privilege of individual council members and the privilege does
not apply to disputes arising between various members of the town
council. Id. at 1398, n.4.

“An agent can only waive a
corporation’s privilege if the agent is acting within the scope
of his or her authority.” Interfaith Housing Del. Inc., v.
Georgetown, 841 F. Supp. 1393, 1399 (D. Del. 1994). The court found that a corporation’s president
and the mayor of a city have power within the scope of their
authority, but not an unauthorized councilperson. Id. at 1399.

Two
companies in negotiations for a merger do not share a common interest
until agreement is reached, and thus communications involving the two
parties prior to the merger agreement are not covered by
attorney-client privilege. Zirn v. VLI Corp., 621 A.2d 773,
780 (Del. 1993).

1.6:475 Privilege for Governmental
Clients

Attorney
client privilege exists when legal advice is communicated by a town
solicitor to individual council members regarding council business. Interfaith Housing Del. Inc., v. Georgetown, 841 F. Supp.
1393, 1398 (D. Del. 1994). “Because of their joint obligations
and commonality of interest, the members of the Town Council share in
its attorney-client privilege when a third party sues both the town
and each councilmember.” Id. at 1398. Council can waive
this privilege of individual council members and the privilege does
not apply to disputes arising between various members of the town
council. Id. at 1398, n.4.

1.6:480 Privilege of Co-Clients

Under the Delaware Rules of
Evidence, “[t]here is no privilege . . . (6) [a]s to a
communication relevant to a matter of common interest between or
among 2 or more clients if the communication was made by any of them
to a lawyer retained or consulted in common, when offered in an
action between or among any of the clients.” Del.
R. Evid. (d)(6) (2004). “The rule assures that
the attorney-client privilege will protect confidential
communications involving counsel for separate clients so long as the
clients share a common interest sufficient to justify invocation of
the privilege.” American Legacy Found. V. Lorillard Tobacco
Co., C.A. No. 19406, 2004 Del. Ch. LEXIS 157, at *10 (Del. Ch.
Nov. 3, 2004). An example of this is “[w]hen an attorney has
been retained to present both insured and insurer in a third-party
action, communications by either party will not be privileged as to
the other, even if their interests later diverge.” Hoechst
Celanese Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh,
623 A.2d 1118, 1123-4 (Del. Super. Ct. 1992).

Simultaneous representation does not
waive attorney-client privilege of the co-clients as to third
parties, Oliver v. Boston Univ., C.A. No. 16570-NC, 2004
Del. Ch. LEXIS 51, at *4-5 (Del. Ch. Apr. 26, 2004), unless a
fiduciary relationship exists between one of the parities and the
third party (see Deutsch v. Cogan, 580 A.2d 100, 107-08 (Del.
Ch. 1990)). Also, “when one or more clients with common
interests waives the attorney-client privilege in a dispute with a
third party, that one individual’s waiver does not effect a
waiver as to the others’ attorney-client privilege.” Interfaith Housing Del. Inc., v. Georgetown, 841 F. Supp.
1393, 1402 (D. Del. 1994). In Interfaith, the individual members of the city council were
being sued along with the council itself. One of the individual
members, without apparent or actual authority, waived some privileged
information through partial disclosure. The Court held that this
information could be used against that councilperson, but not the
other defendants. Id. at 1402. Furthermore, Delaware Rule of
Evidence 502(b)(3) stops a party having a common interest with a
second party, who receives privileged information from the second
party, from sharing that information with a third party over the
objection of the second party by creating a duty of confidentiality. Tenneco Auto., Inc. v. El Paso Corp., C.A. Np. 18810-NC, 2001
Del. Ch. LEXIS 138, at *5-6 (Del. Ch. Nov. 5, 2001). In Tenneco,
the Court found that “because [party one] received the
documents as privileged communications addressing a common interest
shared by [party one] and [party two], [party one could not] waive
the attorney-client privilege on its own. Id. at *6. The
Court further explained that although neither party one nor party two
could claim privilege between them, “the privilege still
attaches as to discovery sought by the [third outside party].” Id. at *7

Two
companies in negotiations for a merger do not share a common interest
until agreement is reach, and thus communications involving the two
parties prior to the merger agreement are not covered by
attorney-client privilege. Zirn v. VLI Corp., 621 A.2d 773,
780 (Del. 1993).

1.6:490 Common-Interests
Arrangements

A joint defense agreement (“JDA”)
“is evidence of both . . . anticipation of litigation and
shared common interest.” American Legacy Found. v. Lorillard Tobacco Co., C.A. No. 19406, 2004 Del. Ch. LEXIS
157, at *4 (Del. Ch. Nov. 3, 2004). American Legacy Foundation deals with litigation stemming from a huge 1999 Master Settlement
Agreement between the nation’s largest tobacco companies and 46
States’ Attorney Generals. The plaintiff, a tobacco company,
sued over ads paid for by the settlement, which they claimed violated
the settlement. Id. at *1-2. The settlement created the
defendant, a non-profit corporation, to institute advertising to
reduce youth smoking. Id. at *2. Plaintiff wanted to be in
on communications between defendant and its advertising agency. Id.
at *3. In anticipation of possible future litigation, defendant and
the ad agency signed a JDA. Id. at *4. Plaintiff contended
that the JDA did not apply, because under the suit brought by the
plaintiff, the ad agency could not be a defendant. Id. at *6.
The Court held that the JDA preserved the lawyer-client privilege
because there was foreseeable future litigation involving the ad
agency. Id. at *15-16. “The fact that [the plaintiff]
has not sued [the ad agency] does not mean that [the defendant] and
[the ad agency] did not have, and do not continue to have, a valid
JDA. The absence of actual litigation against [the ad agency] is
inconsequential . . .” Id. at *16.

1.6:495 Duration of
Attorney-Client Privilege

Communications by a former client to
the former lawyer are not covered by attorney-client privilege when
the lawyer states that he cannot represent the client in the matter
that the client is discussing. Delaware v. Outten, 1992 Del.
Super. LEXIS 484, at 13-4 (Del. Super. Ct. Dec. 1, 1992).

“The existence of the
attorney-client privilege . . . is determined as of the time the
communication is made, not at the time when the discovery of the
communication is sought.” Hoechst Celanese Corp. v. Nat’l
Union Fire Ins. Co. of Pittsburgh, 623 A.2d 1118, 1123 (Del.
Super. Ct. 1992).

Waiver of attorney-client privilege
is the “voluntary and intentional relinquishment of a known
right. Nevertheless, waiver of the attorney client privilege may be
implicit, even if contrary to the party’s actual intent. . .
[W]aiver rests on a rationale of fairness, i.e. disclosure of
otherwise privileged information by the client under circumstances
where it would be unfair to deny the other party an opportunity to
discover other relevant facts with respect to that subject matter.” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254,
259 (Del. 1995)

“An agent can only waive a
corporation’s privilege if the agent is acting within the scope
of his or her authority.” Interfaith Housing Del. Inc. v.
Georgetown, 841 F. Supp. 1393, 1399 (D. Del. 1994). The standard
the court used was whether a reasonably prudent person would assume
the agent had the authority to waive the organization’s
attorney-client privilege. Id. at 1399. The court found that
a corporation’s president and the mayor of a city have power to
waive privilege within the scope of their authority. Id. at
1399. It refused to extend those findings to a city councilperson
where no evidence of actual or apparent authority existed. Id.
at 1399-1400.

Not objecting “to a potential
adversary’s possession of a privileged document before a
pleading has been filed or the document has been raised in legal
proceeding” does not lay claim to a waiver by estoppel theory. Cove on Herring Creek Homeowners’ Association, Inc. v.
Riggs, 2001 Del. Ch. LEXIS 157, *11 (Del. Ch. Dec. 28, 2001)
(summary judgment granted, Cove
on Herring Creek Homeowners' Ass'n v. Riggs,
2003 Del. Ch. LEXIS 36 (Del. Ch. Apr. 9, 2003), aff’d, Riggs
v. Cove on Herring Creek Homeowners Ass'n,
832 A.2d 1252, 2003 Del. LEXIS 472 (Del. 2003)). The failure to
object does not extend to a period prior to the request to admit
privileged information into evidence. In Fingold v. Computer Entry
Systems Corp., the moving party’s motion failed because the
motion was inappropriate and untimely. CA. No. 10539, 1990 Del.Ch.
LEXIS 11, *3 (Del. Ch. Jan. 26, 1990). The original objection was
only for attorney work product immunity and the issue of
attorney-client privilege first came up in the supporting brief. Id.
at *2. Also, the moving party “failed to set forth the factual
basis for their privilege claim, such as a delineation of the
particular portions of, or topics discussed in, [the] lengthy
documents that [were] claimed to have confidential
client-communicated information.” Id. at *3.

1.6:520 Waiver by Subsequent
Disclosure

Under Delaware Rules of Evidence,
“[a] person upon whom these rules confer a privilege against
disclosure waives the privilege if he or his predecessor[,] while
holder of the privilege[,] voluntarily discloses or consents to
disclosure of any significant part of the privileged matter. This
rule does not apply if the disclosure itself is privileged.” Del.
R. Evid. 510 (2004). Exceptions. This does
not apply when the privileged matter’s disclosure “was
(1) compelled erroneously or (2) made without opportunity to claim
the privilege.” Del.
R. Evid. 511 (2004).

Fairness. “[V]oluntary
disclosure by the privilege holder (the client) or consent to
disclosure of any significant part of the privileged matter operates
as a waiver of the privilege.” Clausen v. National Grange
Mut. Ins. Co., 730 A.2d 133, 138 (Del. Super. Ct. 1997).
“Partial disclosure of facts protected by [attorney-client
privilege] is not enough, however. Implicit waiver also requires
that the partial disclosure place the party seeking discovery at a
distinct disadvantage due to an inability to examine the full context
of the partially disclosed information. . . . [Which usually means]
the opposing party will have no alternative source for obtaining the
concealed information if the privilege is upheld.” Tackett
v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 260 (Del.
1995).

“The
purpose underlying the rule of partial disclosure [resulting in the
waiving of privilege] is one of fairness to discourage the use of the
privilege as a litigation weapon . . . A party should not be
permitted to assert the privilege to prevent inquiry by an opposing
party where the professional advice, itself, is tendered as a defense
or explanation for disputed conduct.” Zirn v. VLI Corp.,
621 A.2d 773, 781-2 (Del. 1993). In Zirn, the Court found
that when material “deemed material to shareholder’s
decision to tender stock” was partially disclosed, it could no
longer by protected be attorney-client privilege. Id. at 780.

Disclosure beyond
attorney-client. “Whether disclosure of a communication
beyond the client and lawyer destroys the basis for the claim of
privilege or not inevitably involves a judgment as to whether in the
circumstances the person making the disclosure in fact regarded that
disclosure as confidential and, if there was an expectation of
confidentiality, whether the law will sanction that expectation.
Thus, for example where a client seeks legal advice as to the proper
structuring of a corporate transaction and it is also prudent to seek
professional guidance from an investment banker, it would hardly
waive the lawyer-client privilege for a client to disclose facts at a
meeting concerning such transaction at which both his lawyer and his
investment banker were present.” Jedwab v. MGM Grand Hotels,
Inc., No. 8077, 1986 Del. Ch. LEXIS 383, at *4 (Del. Ch. Mar. 20,
1986).

Sharing confidential information
with a public relations firm may not result in waiver of the
attorney-client privilege when there is a close relationship between
the firm and the lawyer and the communication relates to legal
advice. American Legacy Found. V. Lorillard Tobacco Co., C.A.
No. 19406, 2004 Del. Ch. LEXIS 157, at *19-21 (Del. Ch. Nov. 3,
2004). But “a statement or communication made by a client to
his attorney with intent and purpose that it be communicated to
others is not privileged.” Moyer v. Moyer, 602 A.2d 68,
72 (Del. 1992). Specifically, “. . . where a lawyer [is]
expressly authorized by his client to communicate to opposing counsel
matters to be considered in negotiations for settlement of a
controversy, such matters [are] not confidential communications
protected by attorney/client privilege.” Id. at 72. The
disclosure does not extend to reasons the client gives lawyers for
not signing a negotiated settlement, or specific advice the lawyer
might give the client as to why the client should sign, because that
“clearly [goes] beyond the scope of any information [the
attorney would be expected] to disclose to others or authorized by
her client to disclose.” Id. at 73.

Limits of partial disclosure.
In Interfaith Housing Del. Inc., v. Georgetown, 841 F. Supp.
1393 (D. Del. 1994), the court held that
a statement, ‘on advice of counsel’ by a defendant
councilperson resulted in that councilperson waiving her
attorney-client privilege, but only as to the specific subject talked
about during that statement, and did not waive the privilege of the
other defendants. Id. at 1399

Unpermitted disclosure. The
unpermitted disclosure to a possible adverse party of a piece of
privileged information does not create a waiver of the privilege. In Cove on Herring Creek Homeowners’ Association, Inc. v.
Riggs, 2001 Del. Ch. LEXIS 157, *7-10 (Del. Ch. Dec. 28, 2001)
(summary judgment granted, Cove
on Herring Creek Homeowners' Ass'n v. Riggs,
2003 Del. Ch. LEXIS 36 (Del. Ch. Apr. 9, 2003), aff’d, Riggs
v. Cove on Herring Creek Homeowners Ass'n,
832 A.2d 1252, 2003 Del. LEXIS 472 (Del. 2003)), the court held that
the Association had not waived its attorney-client privilege when a
defendant received a copy of privileged material delivered in his
mailbox, with “no return address or identifying characteristics
revealing who had delivered it to him.” The Board “jealously
guarded” the letter, “no Board member was authorized to
disseminate” it, and “none of the Board members admitted
having disclosed the letter.” Id. *7-8. The court found
that because the letter had not been “disseminated at the
direction or behest of the Association or by any officer or board
member of the Association in his or her official capacity,” the
Association had not waived their privilege when the letter was found
by the defendant in his mailbox. Id. at *9.

Privilege claim dismissal
subsequently overturned. When privileged information is
disclosed upon court order in testimony or cross-examination, and the
party wishing to protect the privilege properly objects, the
privileged status of that information is not waived when the court
order is later overturned. Moyer v. Moyer, 602 A.2d 68, 73
(Del. 1992).

Email disclosure. Emailing
confidential information to numerous people does not waive
attorney-client privilege, so long as the “people had a need to
know the information in the memo to perform their duties.” Int’l Bus. Machines Corp. v. Comdisco, Inc., C.A. No.
91-C-07-199, 1992 Del. Super. LEXIS 67, at *4-5 (Del. Super. Ct. Mar.
11, 1992).

A client
may have waived his attorney-client privilege when making “factual
assertions . . . in the defense of a claim which incorporates,
expressly or implicitly, the advice and judgment of the lawyer.” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254,
259 (Del. 1995). In order for there to be this sort of waiver, first
the “disclosure of otherwise protected fact [must be] relevant
to a particular subject matter relied upon as a defense” and
second, “the partial disclosure [must place] the party seeking
discovery at a distinct disadvantage due to an inability to examine
the full context of the partially disclosed information.” Id.
at 260. In Tackett, an insurer, in a bad faith claim case,
asserted that they had done nothing unusual in their handling of the
claim in dispute and that they relied upon their attorney’s
review of the claim and its processing. The court agreed with the
trial court that because the assertion of proper handling was brought
up by the insurer and, because there was “no alternative source
for obtaining the concealed information,” it was appropriate to
waive the insurer’s attorney-client privilege in this instance. Id. at 259-60. “[When] an insurer makes factual
representations which implicitly rely upon legal advice as
justification for non-payment of claims, the insurer cannot shield
itself from disclosure of the complete advice of counsel relevant to
the handling of the claim.” Id. at 260. (For examples of
bad faith insurance cases where disclosure of attorney-client
privileged information was not ordered, see Clausen v. National
Grange Mut. Ins. Co., 730 A.2d 133, 143-4 (Del. Super. Ct. 1997)
(finding it had too new a record); Rugar v. Commonwealth Land
Title Ins. Co., C.A. No. 93C-04-210, 1996 Del. Super. LEXIS 550,
*16-17 (Del. Super. Ct. Nov. 27, 1996) (finding no partial disclosure
of facts that implicitly rely on privileged communications).

“[T]he
implied waiver [of attorney-client privilege] doctrine may only be
invoked to address issues raised by the opposing party.” Int’l
Bus. Machines Corp. v. Comdisco, Inc., C.A. No. 91-C-07-199, at
*9, 1992 Del. Super. LEXIS 67, (Del. Super. Ct. Mar. 11, 1992).
Although a defendant’s defense can waive a plaintiff’s
attorney-client privilege when it is foreseeable that such a defense
would arise from plaintiff’s claim(s) and the defense puts
privileged information “at issue,” Tenneco Auto., Inc.
v. El Paso Corp., C.A. Np. 18810-NC, 2001 Del. Ch. LEXIS 138, at
*9 (Del. Ch. Nov. 5, 2001), “[a] party cannot force an insurer
to waive the protections of the attorney-client privilege merely by
bringing a bad faith claim.” Tackett v. State Farm Fire &
Cas. Ins. Co., 653 A.2d 254, 259 (Del. 1995). In Tenneco,
the Court found that it was foreseeable that the defendant would use
the defense that “injected” the plaintiff’s
privileged information into the litigation, but it concluded, using
“rational fairness,” that the defendant could obtain the
relevant information from other sources, thus the second part of the
test for waiver of attorney-client privilege was not met and the
privilege not waived. Id. at *9-10.

In Playtek FP, Inc. v. Columbia
Cas. Co., the Court followed Remington Arms Co. v. Liberty
Mut. Ins. Co., C.A. No. 89-420-JLL, 1992 U.S. Dist. LEXIS 6691
(D. Del Apr. 24, 1992) and found that merely stating that attorney’s
fees were reasonable did not put documents connected to those fees at
issue unless the opposing party makes a showing that the claimant
plans to rely on information contained therein at trial, and the
opposing party has no other way to get the information so enclosed.
C.A. No. 88C-MR-233, 1993 Del. Super. LEXIS 62, *7-9 (Del. Super. Ct.
Mar. 4, 1993).

Describing a deposition to an
opposing party that contains privileged information may not be a
waiver of attorney-client privilege when the deposition occurred in
another court action, in another state, and that state’s
evidence rules precluded the claim of privilege because of their
“joint client” exception. In re Sutton, C.A. No.
96M-08-024, 1996 Del. Super. LEXIS 532, *17 (Del. Super. Ct. Aug. 30,
1996). In Sutton, the Court found that the party had “not
voluntarily injected into litigation” information that had been
disclosed “in a deposition in [a] California action in which
the California court had already ruled that [the party’s] claim
of attorney-client privilege with respect to communications between
[the parties] must fail under California law because of the ‘joint
client’ exception to the privilege.” Id. The
Court came to this conclusion because the disclosure was outside the
opposing parties’ subpoenas and the “California court
explicitly ruled that any waiver for purposes of the California
litigation did not operate as a waiver of communications regarding
[the party’s] potential criminal liability. Id. at *20.
Furthermore, the Court held that the party should not have been
“deemed to have waived his attorney-client privilege by merely
describing deposition testimony which [had] been elicited by his
opponent in that [other] litigation.” Id. at *21

Under the
Delaware Rules of Evidence, “[t]here is no privilege . . . (2)
[a]s to a communication relevant to an issue between parties who
claim through the same deceased client, regardless of whether the
claims are by testate or intestate succession or by inter vivos
transaction.” Del.
R. Evid. 502 (d)(2) (2004).

1.6:620 Exception for Client Crime
of Fraud

Under the
Delaware Rules of Evidence, “[t]here is no privilege . . . (1)
[i]f the services of the lawyer were sought or obtained to enable or
aid anyone to commit or plan to commit what the client knew or
reasonably should have known to be a crime or fraud.” Del.
R. Evid. 502 (d)(1) (2004). Delaware follows the line
of cases coming out of Clark v. United States, 289 U.S. 1, 15
(1933), requiring more than mere allegations of fraud to invoke this
privilege exception. In re Sutton, C.A. No. 96M-08-024, 1996
Del. Super. LEXIS 532, *31 (Del. Super. Ct. Aug. 30, 1996). Merely
alleging crime or fraud is not enough, the moving party must be able
to demonstrate “prima facie [but not necessarily
definitive] evidence showing a reasonable basis exists to believe
that certain communications between [the client] and [the client’s
lawyer] were in furtherance of a crime or fraud,” for the
communications to fall within the crime or fraud exception to the
attorney-client privilege. Finley Assocs. v. Sea & Pines
Consol. Corp., 714 Supp. 110, 118 (D. Del. 1989). The evidence
presented must rise to a level such that there is a “factual
basis adequate to support a good faith belief by a reasonable person,
[citation omitted], that in camera review of the materials may reveal
evidence to establish the claim that the crime-fraud exception
applies.” In re Sutton, C.A. No. 96M-08-024, 1996 Del.
Super. LEXIS at *41. The evidence must be that the communication was
done in furtherance of the crime, but evidence of the “commission
of the elements of a crime or fraud” or of the crimes
completion is not necessary. Id. at *36.

In Sutton,
the State argued that communications regarding a document that was
presented at trial and which the Court later determined was falsified
were not privileged, because the drafting of them was in furtherance
of a crime, perjury. The Court found otherwise. It pointed to the
fact that there was no evidence that either the client or the
attorney falsified the document and just because an attorney-client
relationship existed at the time the document was offered, it did not
automatically mean that the relationship existed when the document
was drafted. C.A. No. 96M-08-024, 1996 Del. Super. LEXIS at *38-9.

In Finley
Associates, a contract dispute arose over interest in a seaside
property. Privilege was claimed for information between the
defendant and his former lawyer regarding the offering of a property
to a third party, who was representing a party in discussions with
the defendant to purchase an interest. The plaintiff offered
evidence, including statements from the real-estate broker and a
lawyer to show that these discussions occurred. The court found the
evidence presented was sufficient to determine that the
communications likely fell under the crime or fraud exception and to
compel the former lawyer’s testimony on the subject even though
“[s]ome of the deposition testimony cannot be reconciled . . .” Finley Assocs., 714 Supp. at 118.

1.6:630 Exception for Lawyer
Self-Protection

Under the Delaware Rules of
Evidence, “[t]here is no privilege . . . (4) [a]s to a
communication necessary for a lawyer to defend in a legal proceeding
an accusation that the lawyer assisted the client in criminal or
fraudulent conduct.” Del.
R. Evid. 502 (d)(4) (2004). Also, “[t]here is
no privilege . . . (3) [a]s to a communication relevant to an issue
of breach of duty by the lawyer to the client or by the client to the
lawyer.” Del.
R. Evid. 502 (d)(4) (2004).

In situations involving trusts,
“[i]f it is determined that the beneficiaries were ultimately
the persons intended to benefit from the legal assistance requested”
then attorney-client privilege may not be invoked against the
beneficiaries for documents corresponding to that request. Riggs
Nat’l Bank of Washington, D.C. v. Zimmer, 355 A.2d 709, 711
(Del. Ch. Apr. 1976). In Riggs, the Court found that the
documents were not drafted in litigation against the trustees (the
litigation to which the documents were originally drafted was a
petition for instructions). Id. Rather, it found that “the
ultimate or real clients were the beneficiaries of the trust, and the
trustee, [in the] capacity of fiduciary, was, or at least should have
been, acting only on behalf of the beneficiaries in administering the
trust.” Id. The Court noted that “the payment to
the law firm out of the trust assets [was] a significant factor.” Id. at 712.

In order
for the beneficiary shareholder to gain otherwise privileged
information, the shareholder must show “good cause.” Zirn, 621 A.2d at 781. The Delaware Supreme Court adopted a
standard for “good cause” determinations from the Fifth
Circuit case, Garner v. Wolfinbarger, 430 F.2d 1093, 1104 (5th Cir. 1970) (as opposed to the approach in Valente v. Pepsico,
Inc., 68 F.R.D. 361 (D. Del 1975). Garner stated, “[t]here
are many indicia that may contribute to a decision of presence or
absence of good cause, among them the number of shareholders and the
percentage of stock they represent; the bona fides of the
shareholders; the nature of the shareholders' claim and whether it is
obviously colorable; the apparent necessity or desirability of the
shareholders having the information and the availability of it from
other sources; whether, if the shareholders' claim is of wrongful
action by the corporation, it is of action criminal, or illegal but
not criminal, or of doubtful legality; whether the communication
related to past or to prospective actions; whether the communication
is of advice concerning the litigation itself; the extent to which
the communication is identified versus the extent to which the
shareholders are blindly fishing; the risk of revelation of trade
secrets or other information in whose confidentiality the corporation
has an interest for independent reasons.” Id. at 781.
The Court in Zirn found there was “good cause” in
a case where the directors were attempting “to shield from
shareholder-beneficiaries information directly affecting the
financial interests of those beneficiaries. Id. at 781.
Similarly, in Deutsch v. Cogan, 580 A.2d 100 (Del. Ch. 1990),
the court held that members of the board of directors of a company
involved in a merger could not use attorney-client privilege to deny
company shareholders access to information about the decision to
merge. Id. at 108. The court applied the Garner factors and concluded “[u]nder these circumstances the
defendant cannot assert the lawyer-client privilege as to the
documents in categories 1-4 because the shareholder plaintiffs have
shown ‘good cause’ why the lawyer-client privilege should
not attach,” but refused to find the same for other documents. Id. at 108. (see also Oliver v. Boston Univ., C.A. No.
16570-NC, 2004 Del. Ch. LEXIS 51, at *10-11 (Del. Ch. Apr. 26, 2004), Lee v. Engle, C.A. No. 13323, 1995 Del. Ch. LEXIS 149, at
*4-11 (Del. Ch. Dec. 15, 1995), clarified by Lee
v. Engle, 1998 Del. Ch. LEXIS 122 (Del.
Ch. June 19, 1998), and Sealy Mattress Co. of New Jersey, Inc. v.
Sealy Inc., C.A. No. 8853, 1987 Del. Ch. LEXIS 451, *9-10 (Del.
Ch. June 19, 1987). (applying a factor test similar to Garner)).

“[A] corporation may only
assert the privilege through its agents, i.e. its officers and
directors, who must exercise the privilege in a manner consistent
with their fiduciary duty to act in the best interests of the
corporation and not for themselves as individuals. Thus, the
privilege . . . is not absolute and, if the legal advice relates to a
matter which becomes the subject of a suit by a shareholder against
the corporation, the invocation of the privilege may be restricted or
denied entirely” through the showing of good cause by the
shareholder. Zirn v. VLI Corp., 621 A.2d 773, 781 (Del. 1993).
The [fiduciary] doctrine, where the shareholder needs to show the
fiduciary corporation was not acting in good faith in order to have
communications between the corporation and its lawyer(s) not covered
by the lawyer-client privilege, “is not technically an
‘exception’ to the lawyer-client privilege under Delaware
Evidence Rule 502, but nonetheless results in its not
being applied.” Deutsch v. Cogan, 580 A.2d 100, 104
(Del. Ch. 1990). It “is based upon a commonality of interest
or a “mutuality of interest” between [the fiduciary] and
the limited partners [or shareholders]. If the requisite ‘mutual
interest’ is shown, then the limited partner [or shareholder]
seeking access to a partnership’s [or company’s]
confidential communications with counsel must proceed to show ‘good
cause’ in order to avail themselves of the [pseudo] fiduciary
duty exception.” Metro. Bank and Trust Co. v. Dovenmuehle
Mortgage, Inc., C.A. No. 18023-NC, 2001 Del. Ch. LEXIS 153, at *8
(Del. Ch. Dec. 20, 2001). Factors in determining whether “good
faith” has been shown “may include, among other things:
1) the assertion of a colorable claim; 2) the necessity of the
information and the unavailability of the information from another
source; 3) the extent to which the communication is identified as
opposed to the extent to which the shareholder [or limited partner]
is merely fishing for information; and 4) the requested documents do
not disclose strategies or theories relating to the defense of the
suit [i.e. documents that would qualify under the work-product
doctrine].” Continental Ins. Co. v. Rutledge & Co.,
Inc., C.A. No. 15539, 1999 Del. Ch. LEXIS 12, at *6 (Del. Ch.
Jan. 26, 1999) (internal quotes excluded). “‘Mutuality
of interest’ will have lapsed by the time the general partner
[or company] and the limited partner [or shareholder] can reasonably
anticipate litigation about an identified dispute.” Metro.
Bank and Trust Co., 2001 Del. Ch. LEXIS 153, at *10. In Continental Insurance, the Court easily determined that the
“mutuality of interest” has ceased when the plaintiffs
took steps to withdraw from the partnership. Continental Ins.
Co., 1999 Del. Ch. LEXIS 12, at *10-11. While in Metropolitan,
the facts were more complicated and the court determined the
“mutuality of interest” had ceased when a letter was sent
by the general partner to all of the limited partners except to the
limited partner who brought the claim at the center of the case. Metro. Bank and Trust Co., 2001 Del. Ch. LEXIS 153, at *11.

1.6:660 Invoking the Privilege and
Its Exceptions

“The burden of proving that
the privilege applies to a particular communication is on the party
asserting the privilege.” Moyer v. Moyer, 602 A.2d 68,
72 (Del. 1992). “An improperly asserted claim of privilege is
no claim of privilege at all. The documents must be sufficiently
described to provide the court with a basis upon which to weigh the
assertion of privilege. A bare allegation that information contained
in the documents is privileged will be insufficient to justify
withholding such documents. Each category of documents identified .
. . will be reviewed in accordance with this standard. The
sufficiency of description . . .is satisfied by a showing of: (a) the
identity and corporate position of the person or persons interviewed
or supplying the information; (b) the place, approximate date, and
manner of recording or otherwise preparing the instrument; (c) the
names of the person or persons . . . participating in the interview
and preparation of the document; and (d) the name and corporate
position, if any, of each person to whom the contents of the document
have heretofore been communicated by copy, exhibition, reading, or
substantial summarization.” (citations omitted). Council of
Unit Owners of Sea Colony East v. Carl M. Freeman Assoc., Inc.,
C.A. Nos. 86C-AU-52, et al., 1990 Del. Super. LEXIS 364, *3-4 (Del.
Super. Ct. 1990). Also, the moving parties must “set forth the
factual basis for their privilege claim, such as a delineation of the
particular portions of, or topics discussed in, [the] documents that
[are] claimed to have confidential client-communicated information.” Fingold v. Computer Entry Systems Corp., CA. No. 10539, 1990
Del.Ch. LEXIS 11, *3 (Del. Ch. Jan. 26, 1990).

Privilege
order later overturned. When privileged information is disclosed
upon court order in testimony or cross-examination and the party
wishing to protect the privilege properly objects, the future claim
of that information as privileged is not waived when the court order
is later overturned. Moyer v. Moyer, 602 A.2d 68, 73 (Del.
1992).

Work-product immunity is intended to
protect “the privacy of lawyers in their work and encourage
freedom of lawyers from interference in the task of preparing their
clients’ cases for trial.” Riggs Nat. Bank of
Washington, D.C. v. Zimmer, 355 A.2d 709, 715 (Del. Ch. 1976).
“At its core, the work-product doctrine shelters the mental
processes of the attorney, providing a privileged area within which
he can analyze and prepare his clients’ case.” Tackett
v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 261 (Del.
1995). It “is designed to prevent disclosure of the results of
investigation or mental processes and strategies which have been
developed for use in litigation.” Ramada Inns, Inc. v.
Drinkhall, 490 A.2d 593, 596 (Del. 1985). “The purpose
behind the protection of work product is to ‘promote the
adversary system by safeguarding the fruits of an attorney’s
trial preparations from the discovery attempts of the opponent. Saito v. McKesson HBOC, Inc., C.A. No. 18553, 2002 Del. Ch.
LEXIS 125, *11 (Del. Ch. Oct. 25, 2002), clarified bySaito
v. McKesson HBOC, Inc., 2002 Del. Ch.
LEXIS 139 (Del. Ch. Nov. 13, 2002), aff’d, McKesson
Corp. v. Saito, 818 A.2d 970, 2003 Del.
LEXIS 121 (Del. 2003). When deciding whether to uphold work product
immunity, the Court must balance the policy decision that “an
attorney or party’s agent should not be deterred from
adequately preparing for trial because of the fear that their efforts
will be freely disclosed to opposing counsel” with the policy
that “the rules should be construed to allow discovery of all
relevant information, so that issues may be tried on the true facts.” Mullins v. Vakili, 506 A.2d 192, 198 (Del. Super. Ct. 1986).

The concept of work-product is
separate from attorney-client privilege, but “both arise from
the attorney-client relationship. The work product privilege . . .
serves a different purpose, one related to the adversary system of
litigation – the protection of an attorney’s private
files and recorded impressions from discovery by opposing counsel.” Zirn v. VLI Corp., 621 A.2d 773, 782 (Del. 1993).

Under the
Delaware Rules of Civil Procedure, “a party may obtain
discovery of documents and tangible things otherwise discoverable . .
. and prepared in anticipation of litigation or for trial by or for
another party or by or for that other party's representative
(including the other party's attorney, consultant, surety,
indemnitor, insurer, or agent) only upon a showing that the party
seeking discovery has substantial need of the materials in the
preparation of the party's case and that the party is unable without
undue hardship to obtain the substantial equivalent of the materials
by other means. In ordering discovery of such materials when the
required showing has been made, the Court shall protect against
disclosure of the mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party concerning
the litigation.” Del.
Ch. Ct. R. 26.

The language in Del.
Ch. Ct. R. 26 is not mandatory “as establishing
an impenetrable barrier to discovery of opinion work product,”
but rather requires “additional protection of opinion
work product . . .” Tackett v. State Farm Fire & Cas.
Ins. Co., 653 A.2d 254, 261-2 (Del. 1995). As such, it
“generally provides a lesser degree of protection from
discovery than the attorney-client privilege,” but “its
coverage encompasses a greater amount of materials.” Id.
at 261.

The work
product produced for one litigation may carry the immunity to another
if “the two cases are closely related in parties and subject
matter.” Ramada Inns, Inc. v. Drinkhall, 490 A.2d 593,
596 (Del. 1985). The Court in Ramada found no such relation
because “neither identity of parties nor identity of litigation
subject exists between [the two suits]” thus it held the work
product immunity that existed for the one did not carry over for that
same material to the other. Id. “The lapse of time
between two cases is a consideration . . .” Ashcraft v. A.
C. & S., Inc., C. A. Nos. 87C-FE-170, et al., 1989 Del.
Super. LEXIS 456, *3 (Del. Super. Ct. Nov. 3, 2004). In Ashcraft,
the Court found that because the first case had concluded thirty
years before and “[c]learly, the objective of protecting
litigation strategy, which underlies work product protection, cannot
be served by secreting a document whose function ended many years
ago,” thus work product immunity was not extended to that
second case. Id. at *4.

“In Delaware, the following
factors must be considered in determining whether materials are
protected by the work product doctrine: (1) whether the documents
were prepared in anticipation of litigation; (2) whether the
materials contain legal analysis and opinion or purely factual
matters; (3) whether the materials were prepared or requested by the
party or a representative; (4) whether the materials were routinely
prepared; and (5) whether specific claims were present or whether
discussions or negotiations had occurred at the time the materials
were prepared.” Monsanto Co. v. Aetna Casualty and Surety
Co., No. 88C-JA-118, 1994 Del. Super. LEXIS 261, *9-10 (Del.
Super. Ct. May 31, 1994). (provides a good step by step analysis).
See also Continental Casualty Co. v. General Battery Corp.,
C.A. No. 93C-11-008, 1994 Del. Super. LEXIS 541, *18-19 (Del. Super.
Ct. Nov. 16, 1994).

Anticipation of Litigation

“To
fall within the purview of the work product immunity, the material
need only be prepared in anticipation of any litigation or
trial.” (emphasis added) Hoechst Celanese Corp. v. Nat.
Union Fire Ins. Co. of Pittsburgh, C.A. No. 89C-SE-35, 1995 Del.
Super. LEXIS 320, at *19-20 (Del. Super. Ct. Mar. 17, 1995). The
suit does not actually have to be filed for the work product doctrine
to apply. Continental, Ins. Co. v. Rutledge & Co., Inc.,
C.A. No. 15539, 1999 Del. Ch. LEXIS 12, at *6 (Del. Ch. Jan. 26,
1999). Also, the material need not be prepared for the case sought,
if the case to which it was prepared is closely related. In re
Sutton, C.A. No. 96M-08-024, 1996 Del. Super. LEXIS 532, *45-6
(Del. Super. Ct. Aug. 30, 1996). Additionally, the material may be
prepared in anticipation of some future litigation and before the
incident in the current case occurred. Wolhar v. General Motors
Corp., 712 A.2d 457, 462 (Del. Super. Ct. 1997).

There is
no one test for determining if a “document or tangible thing”
is prepared in anticipation of litigation. Mullins v. Vakili,
506 A.2d 192, 198 (Del. Super. Ct. 1986). “The Court must
consider the facts of each case.” Id. Factors to
consider are the “substantial probability of litigation”
and “immediacy” of the litigation. Id. The
Court should look to the factual information to determine if it can
fairly be said that the document was “prepared or obtained
because of the prospect of litigation…keeping in mind the
purpose of [the work product doctrine] is to protect the integrity of
the adversary process.” Id.

In Mullins, the court found documents were protected which were
prepared by a doctor’s insurance carrier’s claim adjustor
prior to the filing of a medical practice claim, but after the doctor
received a letter from an attorney informing the doctor that the
attorney was representing a former patient of the doctor’s
concerning procedures performed by the doctor. Mullins v. Vakili,
506 A.2d 192, 200 (Del. Super. Ct. 1986). The Court noted that the
documents were “prompted by a letter the plaintiff’s
attorney addressed to the defendant” rather than prompted by
“the event out of which the claim arises.” Id. at
199. The Court also noted that the incident occurred two months
prior to the letter and “when an attorney notifies a doctor two
months after an incident out of which a claim arises that he
represents the doctor’s patient, it may be reasonably inferred
that litigation of some sort is likely.” Id. The Court
also noted that litigation is more reasonably anticipated when
representation is in regard to the doctor’s care rather than
“actual events relating to that care.” Id.

In Carlton
Inv. v. TLC Beatrice Int’l Holdings, Inc., the Delaware
Chancery Court discussed making an “in anticipation of
litigation” determination. “In order to determine
whether documents produced prior to the commencement of litigation
were produced “in anticipation of litigation” under the
[work-product] Rule, one may ask first, do the documents reflect the
collection of information with respect to historical fact relating to
a potential claim that is actually considered in connection with that
research activity? Documents satisfying this test (e.g. witness
statements) represent documents created in anticipation of
litigation. If documents do not meet this gather-of-historical-fact
test standard, they still may qualify as being created in
anticipation of litigation, but they are likely to be so only if they
directly reflect considerations of legal strategies, tactics or
theories of foreseen future litigation. In other words, it is
insufficient to qualify for the limited immunity of Rule
26(b)(3), if a document is created for a purpose other
than, or in addition to, the defense of a future litigation claim.
Examples would be: a draft of a contract; a draft of a required or
elective filing; a memorandum of a negotiation; or, other document
that is designed to be, or lead to, a transaction document. C.A. No.
13950, 1996 Del. Ch. LEXIS 111, *10-11 (Del. Ch. Sept. 17, 1996).

In
formation gathered can be done in anticipation of litigation even if
done before the incident that generates the actual claim has
occurred. Wolhar v. General Motors Corp., 712 A.2d 457, 462
(Del. Super. Ct. 1997). In Wolhar the defendant gathered
certain information in a “Litigation Study” looking at
potential litigation stemming from potentially defective breaking
systems in some of their vehicles. After the study had been
completed, plaintiff was in an accident in a vehicle involving the
potentially faulting breaking system and brought suit against the
defendant. The Court held that the study was protected as work
product even though it had been gathered before plaintiff’s
accident. Id.

In Mullins v. Vakili, the
Court found that because an insurance claim adjustor’s notes
contained evaluations of the merits of the case and “predominantly
factual data,” work product immunity applied. 506 A.2d 192,
200 (Del. Super. Ct. 1986). The Court distinguished notes take by
claim adjustors for medical malpractice claims verses other insurance
claims. “Unlike many types of insurance claims where fault is
not an issue and litigation merely involves the interpretation and
application of the terms of the policy and the liability of the
insurer under the policy, in a medical malpractice case the issues
center on the alleged negligence of the doctor with the insurer
initiating the preparation of the doctor’s defense and
disputing any negligence on the part of the doctor.” Id.

Preparer

In order for documents to be covered
under the work product rule, “[a]n attorney’s involvement
is not necessary.” Clausen v. National Grange Mut. Ins.
Co., 730 A.2d 133, 140 (Del. Super. Ct. 1997). But they must
have been prepared by the party or an authorized representative. Monsanto Co. v. Aetna Casualty and Surety Co., No. 88C-JA-118,
1994 Del. Super. LEXIS 261, *9-10 (Del. Super. Ct. May 31, 1994). If
prepared by a non-lawyer, it does not have to be done with prior
consultation with counsel. Mullins v. Vakili, 506 A.2d 192,
196 (Del. Super. Ct. 1986). But “the fact that the
non-attorney did or did not consult with counsel during the
preparation of the document in question is, however, relevant though
not conclusively determinative, as to whether the document was
prepared in anticipation of litigation.” Id.

In Lee
v. Engle, the court determined that material put together was not
work product, because the person, despite having a prior legal
degree, was not hired in the capacity of an attorney by the defendant
until after the litigation began. C.A. No. 13323, 1995 Del. Ch.
LEXIS 149, at *13 (Del. Ch. Dec. 15, 1995), clarified by Lee
v. Engle, 1998 Del. Ch. LEXIS 122 (Del.
Ch. June 19, 1998).

Routine Preparation

To be
protected by the work product doctrine, the material cannot be
“prepared only in the ordinary course of business.” Clausen v. National Grange Mut. Ins. Co., 730 A.2d 133, 140
(Del. Super. Ct. 1997). “Materials prepared in the routine or
ordinary course of business are less likely to be considered work
product.” Monsanto Co. v. Aetna Casualty and Surety Co.,
No. 88C-JA-118, 1994 Del. Super. LEXIS 261, *9-10 (Del. Super. Ct.
May 31, 1994). Thus, “[m]aterial assembled during routine
investigations by counsel are not protected as work product.” Ramada Inns, Inc. v. Drinkhall, 490 A.2d 593, 596 (Del. 1985).
“Indeed, where the material sought was prepared with the
primary purpose of assisting in a party’s day to day business,
the material is not protected, even if there exists a likelihood of
ultimate litigation. Thus, in determining whether the privilege
should apply to a particular document, the critical question is
whether preparation for litigation or trial was a primary motivation
in the development of the document. A generalized alterness to the
possibility of litigation is not sufficient to bring material within
the purview of the work product doctrine.” Hoechst Celanese
Corp. v. Nat. Union Fire Ins. Co. of Pittsburgh, C.A. No.
89C-SE-35, 1995 Del. Super. LEXIS 320, at *19-20 (Del. Super. Ct.
Mar. 17, 1995). But when the routine business is preparation for
litigation, the work product immunity would still apply. Mullins
v. Vakili, 506 A.2d 192, 200 (Del. Super. Ct. 1986). (notes of a
claims adjustor for a medical malpractice claim).

Names
and Contact Information of Fact Witnesses. Under Delaware law,
it has been held that “the identity of person[s] who have been
interviewed or who have given statements” falls “outside
of the work product doctrine’s protection and [can] be
discovered without any showing of need.” Nat’l Union
Fire Ins. Co. of Pittsburg, C.A. No. 87C-SE-11, 1991 Del. Super.
LEXIS 25, *8 (Del. Super. Ct. Jan. 15, 1991).

Under the Delaware Rules of Civil
Procedure, need for disclosure of factual or ordinary work product
arises “only upon a showing that the party seeking discovery
has substantial need of the materials in the preparation of
the party's case and that the party is unable without undue hardship
to obtain the substantial equivalent of the materials by other
means.” Del.
Ch. Ct. R. 26(b)(3). (emphasis added).

Unique, immediate impressions of
fact. In Mullins v. Vakili, the Court found that the
plaintiff failed to show substantial need for notes taken by an
insurance claim adjuster of statements made by the defendant doctor
when the statements were made two-months after the incident, because
they were not “unique, immediate impressions of the facts.”
506 A.2d 192, 200 (Del. Super. Ct. 1986).

Under the
Delaware Rules of Civil Procedure, “[i]n ordering discovery of
such materials when the required showing has been made, the Court
shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation.” Del. Ch.
Ct. R. 26(b)(3). The language in Del.
Ch. Ct. R. 26(b)(3) does not “establish…an
impenetrable barrier to discovery of opinion work product,” but
rather requires “additional protection of opinion work
product . . .” Tackett v. State Farm Fire & Cas. Ins.
Co., 653 A.2d 254, 261-2 (Del. 1995). Rule 26(b)(3) requires “additional protection of opinion work product,
[but does not] require its absolute protection. Id. at
262.

In order
for a party to overcome Rule 26(b)(3) opinion work product protections, they must show “that it has a
more ‘substantial need’ to review opinion work product
than would be required for that party to review non-opinion work
product.” Tackett v. State Farm Fire & Cas. Ins. Co.,
653 A.2d 254, 262 (Del. 1995). “[T]he mental impressions must
be directed to the pivotal issue in the current litigation and the
need for the material must be compelling.” Id. at 262.
“[W]aiver of opinion work product protection should only be
made in cases of the most egregious conduct by the holder of the
privilege. In order to waive a privilege, an individual must know of
a particular right and voluntarily and intentionally choose to
relinquish it. A waiver does not always have to be expressed, it may
also be implied from the circumstances. Saito v. McKesson HBOC,
Inc., C.A. No. 18553, 2002 Del. Ch. LEXIS 125, *12 (Del. Ch. Oct.
25, 2002), clarified bySaito
v. McKesson HBOC, Inc., 2002 Del. Ch.
LEXIS 139 (Del. Ch. Nov. 13, 2002), aff’d, McKesson
Corp. v. Saito, 818 A.2d 970, 2003 Del.
LEXIS 121 (Del. 2003).

In Tackett, in a bad faith insurance claim, the insurer relied on
advice of its counsel to deny a claim. The Court held that the
plaintiff had met this burden, because “[a] plaintiff seeking
to establish a claim of bad faith in a first-party insured-insurer
contractual relationship must show that the insurer lacked reasonable
justification in delaying or refusing payment of a claim. As part of
its standard claims handling procedure, [the insurer] sought the
advice of . . . its outside counsel. Because [the insurer] typically
consults with an attorney regarding the value of an insured’s
claim, [the insurer’s] rejection of counsel’s advice in
[the] case created critical evidence supporting a claim for bad
faith, i.e., the rejection of the advice provided significant
evidence tending to show a lack of reasonable justification to deny
the claim.” The insurer then claimed that the denial was
unreasonable, relying on the affidavit of one of its lawyers who had
reviewed the claim. Id. at 262-3. For a bad faith insurance
case where disclosure of work product information was not ordered,
see Clausen v. National Grange Mut. Ins. Co., 730 A.2d 133,
143-4 (Del. Super. Ct. 1997) (finding it had too new a record).

Separating
non-opinion and establishing need. In Merisel, Inc. v.
Turnberry Capitol Mgmt., L.P., the counterclaimant wanted notes
taken by claimant’s attorney during conference calls. C.A. No.
15906-NC, 1998 Del. Ch. LEXIS 136, *4 (Del. Ch. Aug. 5, 1998).
Plaintiff refused on grounds that these notes contained the opinion
work-product of the attorney and that counterclaimant could get the
material by deposing those that took part in the conference call.
Counterclaimant countered that the attorney was just taking minutes
and not acting as an attorney preparing for anticipated litigation,
and that they needed the notes because those interviewed no longer
remembered the content of the conversation. Also, those party to the
conversation were majority shareholders of the plaintiff and thus
would be reluctant to divulge the information. The Court requested
to see the material in camera and “[t]o the extent [the
attorney] took notes of ‘who said what,’ as any attendee
could have, those notes may be segregable and produced.”
But “[t]o the extent [the attorney] gathered historical facts
or recorded her subjective thoughts with a view toward rendering
legal advice to plaintiff and developing a litigation strategy . . .
the notes may be protected by the work product doctrine.” Id.
at *4. The Court found that counterclaimant had not “exhausted
all other avenues for obtaining the relevant information,”
because they had “not yet disposed all participants in the
conference calls” and the counterclaimant had not met the
burden of showing what was needed to overcome the work product
doctrine. Id. at *5-6.

“[P]roduction
of opinion work product should not be ordered without an in camera examination by the trial court . . .” Tackett v. State Farm
Fire & Cas. Ins. Co., 653 A.2d 254, 263 (Del. 1995).

1.6:740 Invoking Work-Product
Immunity and Its Exceptions

(see 1.6:720 Ordinary Work Product
and 1.6:730 Opinion Work Product for information specific to those
types).

Invoking & review

“[P]roduction of opinion work
product should not be ordered without an in camera examination
by the trial court” requiring a showing “of a factual
basis adequate to support a good faith belief by a reasonable person
that [the] in camera review of the materials may reveal
evidence to establish the claim. . . . If the party seeking
disclosure meets this burden, the trail court may exercise its
discretion in reviewing the materials and require production under
the compelling need standard.” Tackett v. State Farm Fire &
Cas. Ins. Co., 653 A.2d 254, 263 (Del. 1995).

Burden.
“Under Delaware law, the burden with respect to a claim of
[work product] privilege is on the party asserting such a claim. An
improperly asserted claim of privilege is no claim of privilege at
all. The documents must be sufficiently described to provide the
court with a basis upon which to weigh the assertion of privilege. A
bare allegation that information contained in the documents is
privileged will be insufficient to justify withholding such
documents. Each category of documents identified . . .will be
reviewed in accordance with this standard. The sufficiency of
description . . .is satisfied by a showing of: (a) the identity and
corporate position of the person or persons interviewed or supplying
the information; (b) the place, approximate date, and manner of
recording or otherwise preparing the instrument; (c) the names of the
person or persons . . . participating in the interview and
preparation of the document; and (d) the name and corporate position,
if any, of each person to whom the contents of the document have
heretofore been communicated by copy, exhibition, reading, or
substantial summarization.” (citations omitted) Council of
Unit Owners of Sea Colony East v. Carl M. Freeman Assoc., Inc.,
C.A. Nos. 86C-AU-52, et al., 1990 Del. Super. LEXIS 364, *3-4 (Del.
Super. Ct. 1990).

Disclosure
requirements and consequences. Delaware does not have the
equivalent of Federal
Rules of Evidence Rule 26(b)(5) that waives privilege
when a party withholds information and does not include a descriptive
summary of the material withheld. Wolhar v. General Motors Corp.,
712 A.2d 457, 463 (Del. Super. Ct. 1997). Delaware
Rules of Evidence, Rule 33(b)(4) requires that
objections be “stated with ‘specificity,’ but does
not mention or require the submission of a descriptive summary of the
materials withheld.” Id. “The Delaware Rules do
not expressly require such a submission contemporaneously with the
assertion of privilege.” Id. at 464. In Wolhar,
the Court found that the defendant had been late in its submission of
the privilege logs, but was “not so untimely as to require the
harsh sanction of waiver.” Id.

Standard
of Review. De novo review is used by a reviewing court
“on the question of whether a trial court correctly applied . .
. the work product doctrine.” Id. at 258.

Exceptions – “Substantial
Need”

(See 1.6:720 Ordinary Work Product
and 1.6:730 Opinion Work Product for specific rules and examples
applying to each category of work product).

The rational behind the “substantial
need/ undue hardship test” is that “[w]here the benefit
to the resolution of the case outweighs the potential injury to the
party from whom discovery is sought, disclosure may be required.” In re Sutton, C.A. No. 96M-08-024, 1996 Del. Super. LEXIS
532, *47 (Del. Super. Ct. Aug. 30, 1996).

In Rowlands v. Lai, the court
found substantial need when the defendant could not be located and
the party to whom the defendant made statements chose not to answer
questions pertaining to conversations with the defendant during the
discovery process. C.A. No. 95C-06-006 (JTV), 1999 Del. Super. LEXIS
161, *6 (Del. Super. Ct. Apr. 6, 1999).

Exceptions – Fiduciaries

In Riggs Nat’l Bank of
Washington, D.C. v. Zimmer, the Court applied what appears to be
a slightly lower standard of substantial need in cases involving
beneficiaries and a trust’s attorney. The Court found
substantial need where the “production of the opinion would
fill a needed factual gap not available, at least not with the same
degree of accuracy, from any other source.” 355 A.2d 709, 716
(Del. Ch. Apr. 1976). The Court in Riggs concluded that
public policy weighs against allowing the invocation of work-product
immunity against beneficiaries by an attorney working on behalf of
the trust. Id. at 716.

“Disclosure
of work product does not negate its protection unless the disclosure
is ‘inconsistent with the maintenance of secrecy from the
disclosing party.’” Saito v. McKesson HBOC, Inc.,
C.A. No. 18553, 2002 Del. Ch. LEXIS 125, *13 (Del. Ch. Oct. 25,
2002), clarified bySaito
v. McKesson HBOC, Inc., 2002 Del. Ch.
LEXIS 139 (Del. Ch. Nov. 13, 2002), aff’d, McKesson
Corp. v. Saito, 818 A.2d 970, 2003 Del.
LEXIS 121 (Del. 2003). The question of whether a disclosure
constitutes a waiver centers around: “1) did the disclosing
party believe its disclosure was confidential; and 2) will the law
sanction that expectation.” Id. at *14. “The
factors which determine whether privileged documents lose their
protections once disclosed to an adversary are as follows: (1) the
reasonableness of the precautions taken to prevent inadvertent
disclosure; (2) the time taken to rectify the error; (3) the scope of
discovery and extent of disclosure; and (4) overall fairness, judged
against the care or negligence with which the privilege is guarded.” Monsanto Co. v. Aetna Casualty and Surety Co., No. 88C-JA-118,
1994 Del. Super. LEXIS 261, *17-18 (Del. Super. Ct. May 31, 1994).
“The application of the factors is simply a balancing process.” Id. at 18.

In Monsanto Co. v. Aetna Casualty and Surety Co., the Court found
that the fact that the party claiming the immunity did not mark any
of the documents “confidential” or “privileged”
was out weighed in their favor by the fact that they “wasted no
time in rectifying erroneous disclosure once they became aware of
it…the scope of the discovery …was great,” and
overall fairness favored the claiming party. No. 88C-JA-118, 1994
Del. Super. LEXIS 261, *19-21 (Del. Super. Ct. May 31, 1994). The
fairness conclusion was reached because the papers were produced “in
good faith compliance with a discovery request, there was no reason
to believe that protected material would be included, it was unclear
how the opposing party came into possession of the papers, and the
claiming party took prompt action to retrieve the papers. Id.
at *20-21.

“Common Interest”
exception

“Disclosures to a third party
do not waive attorney work product when the disclosing party and its
recipient share some common interest.” Saito v. McKesson
HBOC, Inc., C.A. No. 18553, 2002 Del. Ch. LEXIS 125, *14 (Del.
Ch. Oct. 25, 2002), clarified bySaito
v. McKesson HBOC, Inc., 2002 Del. Ch.
LEXIS 139 (Del. Ch. Nov. 13, 2002), aff’d, McKesson
Corp. v. Saito, 818 A.2d 970, 2003 Del.
LEXIS 121 (Del. 2003). “This ‘common interest exception’
or ‘joint prosecution privilege’ will attach when the
persons sharing the information have a common adversary or share a
common interest in litigation.” Id. at *15. “The
traditional example of this is co-defendant situations.” Id.
In Saito, the Court found that the defendant and the SEC did
not share a “common interest” to satisfy the exception
when the defendant cooperated with the SEC and shared information it
later wanted to claim as having work product immunity. Id. at
*16. The defendant knew it was the target of a SEC probe, there were
investigations from two different agencies’ enforcement arms,
the enforcement agents “were not ‘friendly’”
to the defendant, and the defendant conceded that the SEC “expressly
disavowed sharing a common interest with the defendant.” Id.
at *17-18.

“Under exceptional
circumstances a party may be deemed to have waived the work product
immunity if he raises issues, asserts defenses, or presents evidence
in the litigation that necessarily requires disclosure of opinion
work product.” Phillips Petroleum Co. v. Arco Alaska Inc.,
No. 7177, 1986 Del. Ch.. LEXIS 489, *9 (Del. Ch. Dec. 16, 1986),
quoted in Tackett v. State Farm Fire & Cas. Ins. Co., 653
A.2d 254, 258 (Del. 1995). “Implicit in this waiver concept
are the conditions that the subject matter work product must be
directly at issue and that the need for production of the work
product must be compelling. [citations omitted]. Although applied
consistently with concepts of fairness, the waiver exception is also
to be narrowly construed. Phillips Petroleum Co. v. ARCO Alaska,
Inc., C.A. No. 7177, 1986 Del. Ch. LEXIS 489, *10 (Del. Ch. Dec.
16, 1986). “[A] waiver of the attorney-client privilege does
not always necessarily, or as a general matter, operate as a wavier
of the protection afforded to related work product.” Id.
at *10-11

In Tackett, involving a wrongful handling of an insurance claim
case, the Court found that to deny waiver “would require a
plaintiff, and the Court to accept as true the insurer’s
assertion that it handled the claim in a proper manner,” which
went against the notion of fairness in litigation. Tackett v.
State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 263 (Del.
1995).

In Philip Petroleum, the
judge did independent analysis to see if work product immunity had
been waived after determining that attorney-client privilege had been
waived. The Court found it needed to answer two questions, (1) the
linkage between the documents and party’s use “to prove
its own subjective intent,” and (2) the compelling need of the
opposing party to gain the documents through discovery. Phillips
Petroleum Co. v. ARCO Alaska, Inc., C.A. No. 7177, 1986 Del. Ch.
LEXIS 489, *11 (Del. Ch. Dec. 16, 1986). The Court found that
because no one involved with the drafting of the documents could
recall their contents, a compelling need was created. Although there
was no proof of a factual connection, the Court held the opposing
party was entitled to examine the document and depose persons in
connection with it. Finally, the Court concluded that “[b]y
introducing the [document] in the arbitration to show its intent as
to the redetermination agreement, [the work-product claiming party]
put the subject matter of its corporate intent into issue,” so
the opposing party had “a compelling need to obtain . . .
documents that are relevant to that issue.” Id. at
13-14.